Three questions for Clarence Thomas

CNN
Monday, June 10, 2013 - 9:27am

He wore a black beret and army fatigues, warned people that a revolution was coming and memorized the speeches of Malcolm X.

"I now believed that the whole of American culture was irretrievably tainted by racism," he once said, describing his reaction to the assassination of the Rev. Martin Luther King Jr.

Soon, that same man is expected to help the U.S. Supreme Court bury two pillars of the civil rights movement: the Voting Rights Act and affirmative action.

There may seem to be a contradiction between the Clarence Thomas who was the angry campus radical in the 1960s and the conservative hero who sits on the Supreme Court today. But some legal observers say Thomas sees himself as a "prophetic civil rights leader" who is still fighting for the same cause -- a colorblind America.

Thomas is an American hero, says Henry Mark Holzer, author of "The Supreme Court Opinions of Clarence Thomas."

"A lot of people who are what I call professional Negros have ridden white guilt and socialism to very lucrative lives," says Holzer, who uses the term "Negro" because he says he doesn't classify people by skin color.

"Thomas didn't," Holzer says. "He made a very deliberate and gutsy decision to go where his intellect and his study took him, and that's heroic."

One man's hero, though, is another man's sellout. During his 22 years on the nation's highest court, Thomas has been called a self-loathing "Uncle Thomas." His impact, though, cannot be ignored. His judicial opinions have transformed America. And no other contemporary Supreme Court justice has spoken with such raw emotion about race or has embodied the subject's complexities.

Yet he is still a mystery to many. There are questions about Thomas that have persisted even after two decades on the Supreme Court as its lone African-American justice.

Here are three of them:

Question 1: Why does Thomas condemn affirmative action if he benefited from it?

When the Supreme Court issues a ruling soon on the constitutionality of using race in college admissions, the impact could be momentous. The court will decide if the University of Texas violated the constitutional rights of some white applicants by considering race in the admissions process.

There seems to be little mystery about how Thomas will vote.

He consistently votes against affirmative action policies because he says they're divisive, unconstitutional and harmful to their recipients. He cites his own experience as an example.

Thomas was born in poverty in rural Georgia but managed to gain admittance to Yale Law School. He acknowledges that he made it to Yale because of affirmative action but says the stigma of preferential treatment made it difficult for him to find a job after college.

In his memoir, "My Grandfather's Son," Thomas says he felt "tricked" by paternalistic whites at Yale who recruited black students.

"I was bitter toward the white bigots whom I held responsible for the unjust treatment of blacks," he wrote, "but even more bitter toward those ostensibly unprejudiced whites who pretended to side with black people while using them to further their own political and social ends."

Some observers, though, counter with one question:

If affirmative action is so bad for its recipients, how come you've done so well?

"His entire judicial philosophy is at war with his own biography," said Michael Fletcher, co-author of "Supreme Discomfort: The Divided Soul of Clarence Thomas." "He's arguably benefited from affirmative action every step of the way."

For many blacks, affirmative action is "the contemporary equivalent of the Emancipation Proclamation," Fletcher explains in his book. It's one of the most important legacies of the civil rights movement. The expansion of the black middle class was driven by affirmative action policies, he says.

Some blacks detest Thomas not because he's conservative, Fletcher says, but because he rules against affirmative action policies, closing the door that was opened for him.

The black community has accepted conservatives as varied as Booker T. Washington, Colin Powell and Condoleezza Rice. Many members of the community dislike Thomas for another reason.

"Some say he's a traitor and hypocritical," says Fletcher, an economics correspondent with The Washington Post.

Thomas first attracted public attention in the early 1980s when the late President Ronald Reagan asked him to lead the Equal Employment Opportunity Commission, which enforces federal discrimination laws. Thomas' opposition to affirmative action and criticisms of civil rights leaders during his tenure made headlines.

In 1990, President George H.W. Bush appointed Thomas to the powerful U.S. Court of Appeals for the D.C. Circuit, a traditional stepping stone to the Supreme Court.

Would Thomas have risen so far so quickly had he not been black?

CNN legal analyst Jeffrey Toobin doesn't think so. In a biting 2007 New Yorker magazine review of Thomas' memoir, Toobin wrote that Thomas had never tried a case or argued an appeal in any federal court and had never produced any scholarly work when he made the D.C. appeals court.

"Yale and Reagan treated him the same way, but he hates one and reveres the other," Toobin wrote. "Thomas never acknowledges, much less explains, the contradiction."

When Bush selected Thomas in 1991 to replace Thurgood Marshall, the court's first black justice, the questions about Thomas' qualifications intensified. Bush said he picked "the best qualified" nominee, but Thomas questioned that in his memoir, saying even he had doubts about Bush's "extravagant" claim.

"There was no way I could really know what the president and his aides had been thinking when they picked me," he wrote.

Thomas' defenders say his performance on the high court has removed any doubts about his qualifications. They call him the most consistent conservative on the court, a man who won't sacrifice his principles to eke out a short-term judicial victory.

Holzer, author of "The Supreme Court Opinions of Clarence Thomas," says he doesn't think Thomas "benefited from affirmative action at all."

Thomas' legal acumen is well-known, says Holzer, a retired law professor from Brooklyn Law School. Thomas is the court's leading "originalist" -- he interprets the Constitution based on what the framers meant, not on any partisan policy preferences.

"This may be hard for Toobin to swallow -- Clarence Thomas would have been appointed were he white, yellow, brown, beige, even blue or green."

Scott Douglas Gerber, an Ohio Northern University law professor and author of "First Principles: The Jurisprudence of Clarence Thomas," says Thomas is on the verge of cementing his judicial legacy with the two civil rights cases before the court.

Thomas' constitutional philosophy is simple, Gerber says: All Americans should be treated as individuals and not as members of a racial or ethnic group.

Gerber says Thomas has ruled against the Voting Rights Act in the past because he believes that laws based on the "proportional allocation of political powers according to race" should be overturned.

The Voting Rights Act is considered one of the crown jewels of the civil rights movement. Its passage, which came about after King led a dramatic campaign in Selma, Alabama, is responsible for the expansion of black political power in the last 30 years.

The Supreme Court is considering abandoning Section 5 of the act, which requires states with a history of discrimination to "pre-clear" any changes in voting law with the U.S. Justice Department first.

Thomas isn't the only Supreme Court justice whose life has been shaped by affirmative action. One of his colleagues is grateful for the role it played in her life.

Sonia Sotomayor recently told "60 Minutes" that affirmative action helped her gain admittance to Princeton University. (She also graduated from Yale Law School.) She is the first Hispanic justice on the Supreme Court.

"It was a door-opener that changed the course of my life," Sotomayor said in the January interview.

Question 2: How does Thomas embrace an "originalist" view of the Constitution when the framers would have considered him a slave?

A lot of originalist judges rhapsodize about the wisdom of the Constitution's framers, but Thomas approaches the Constitution with a different racial history. Blacks were enslaved by many of the founding fathers who talked about liberty and freedom.

How does a black judge become an originalist when the "original intent" of the Constitution was to preserve slavery and classify slaves as three-fifths of a human being?

Thomas addressed that question in part in one of his most cited opinions, a 2007 school integration case, Parents Involved in Community Schools v. Seattle School District No. 1.

Thomas joined a conservative majority that ruled 5-4 that race cannot be a factor in assigning children to public schools. In a concurring opinion, Thomas cited one of the Supreme Court's greatest judges, John Marshall Harlan, known as the "great dissenter."

Harlan issued a thunderous dissent in the notorious 1896 Plessy v. Ferguson case, which sanctioned the separate but equal doctrine that provided the legal foundation for the brutal Jim Crow era. Plessy is considered one of the high court's lowest moments.

Thomas invoked another landmark Supreme Court decision, the 1954 Brown v. Board of Education ruling, which declared segregated schools and the separate-but-equal doctrine of Plessy unconstitutional.

Thomas wrote in the Seattle decision:

"My view of the Constitution is Justice Harlan's view in Plessy: 'Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.' And my view was the rallying cry for the lawyers who litigated Brown."

Thomas embraces an originalism that is rooted in the principles of the founders rather than their practices, wrote Hannah L. Weiner, author of an article in the Duke Law Journal on Thomas entitled "The Next Great Dissenter."

Weiner said Thomas believes that history will hail him as a "prophetic leader of civil rights" who honored the civil rights movement by fighting for its ultimate goal: a colorblind America.

"He says the same framers who saw him as three-fifths of a man wrote the Declaration of Independence that allowed us to dream of having a President Obama in the White House," says the Post's Fletcher.

Marcia Coyle, author of the "The Roberts Court," a look at the contemporary court's battle over the Constitution, says Thomas believes that Reconstruction -- a brief period after the Civil War when the federal government strove to make full citizens of freed slaves -- purified the Constitution.

"He believes the Reconstruction amendments purged the Constitution of the taint of slavery and rendered the Constitution colorblind," says Coyle, who provides Supreme Court analysis for the "PBS NewsHour."

The Reconstruction amendments are the 13th, 14th and 15th amendments. They abolish slavery, empower newly freed slaves and protect their right to vote.

For anyone who follows matters of race in America, the 14th Amendment is vital. The amendment, with its emphasis on equality, has become the epicenter of a fierce legal battle over what the Constitution says about race.

Thomas and other conservative judges believe the 14th Amendment bans any preferential treatment of minorities because the Constitution is colorblind. It doesn't matter if a person is white, black or green, they say, dividing people up by race is unconstitutional. They cite Harlan's "colorblind" dissent in Plessy in which he invoked the 14th Amendment.

Others say judges like Thomas are engaging in clever semantics, commandeering language that was originally used to help racial minorities to argue for policies that now exclude them.

Doug Kendall, founder and president of the Constitutional Accountability Center in Washington, says Thomas is a "faux" originalist who ignores the "original intent" of the 14th Amendment framers who were trying to create laws to address the legacy of slavery.

"They were the first proponents of affirmative action," Kendall says of the Reconstruction amendment lawmakers. "They passed a whole series of laws that were designed to help the freed slaves realize the promise of being a full and equal citizen in the U.S."

But Gerber, the Ohio Northern University law professor, says Thomas bases his originalist vision in the Declaration of Independence.

"He knows that most of the framers were racists," says Gerber. "He rejects those personal practices but as (Abraham) Lincoln pointed out, the framers committed the nation to the idea of equality that is articulated in the Declaration."

Question 3: Why doesn't Thomas follow his own advice about not playing the victim?

When he worked for the Reagan administration, Thomas once told a reporter that all civil rights leaders did was "bitch, bitch, bitch, moan and moan, whine and whine."

Thomas has long preached that blacks should be self-reliant and stop complaining about racism. He traces that philosophy to his childhood in Georgia, where he was raised by a stern grandfather who told him he had to "play the hand" fate dealt him.

"I'd long believed that the best thing to do was to stop government-sanctioned segregation, then concentrate on education and equal employment opportunities," he wrote in his memoir. "The rest I thought would take care of itself."

Yet critics say Thomas doesn't follow his own advice. They say he regularly portrays himself as a victim even though he sits on the nation's highest court.

Fletcher called him "the most successful victim in America."

He says Thomas holds grudges against old college classmates, black critics and "elites." He often equates his plight to that of slaves when he compares critics to "overseers" and talks about blacks who expect him to be an "intellectual slave."

"He has a lot of slights that he catalogs carefully throughout his life," Fletcher says.

Slights against the U.S. Supreme Court also affect Thomas. While speaking to a bar association in rural Georgia in 2011, Thomas said critics of the Supreme Court's decisions were illiterate or lazy.

"You don't just keep nagging and nagging and nagging," he told the Augusta Bar Association. "Sometimes, too much is too much."

Thomas recently used an occasion of great joy for the black community -- the election of the nation's first black president -- to complain about persecution. When he was asked if he was surprised that a black man became president, he criticized the "elites" and "the media."

"The thing that I always knew is that it would have to be a black president who was approved by the elites and the media, because anybody they didn't agree with, they would take apart," Thomas said during a C-SPAN interview at a Pittsburgh law school in April.

Thomas' behavior at his confirmation hearing in 1991 soured some critics as well. When he was accused of sexual harassment, Thomas publicly told a Senate panel that he was the victim of a "high-tech lynching" reserved for uppity blacks.

Thomas flashed the race card to get on the Supreme Court, says George Curry, a commentator, media coach and speaker who once placed Thomas on the cover of a now-defunct black political magazine called Emerge with the title, "Uncle Thomas."

"He used race when it was convenient to him," Curry says. "That was designed to put an all-white panel on the defensive."

Thomas, though, says it's not persecution if it's real.

In his memoir, he wrote about his confirmation hearing:

"As a child in the Deep South, I'd grown up fearing the lynch mobs of the Ku Klux Klan; as an adult, I was starting to wonder if I'd been afraid of the wrong white people all along. My worst fears had come to pass not in Georgia but in Washington, D.C., where I was being pursued not by bigots in white robes but by left-wing zealots draped in flowing sanctimony."

Horace Cooper, an attorney and commentator, says Thomas was only telling the truth when he invoked a "high-tech lynching."

He says many people haven't accepted that Thomas isn't the liberal crusader they think the successor to Marshall, the court's first black justice, should be.

"The law isn't about helping oppressed and downtrodden people get justice in a system tilted against them," says Cooper, whose columns appear on Townhall.com, a conservative online magazine. "Justice Thomas has been reminding people that it is not the role of the court to undo unfairness but to literally use the rules: Call a strike a strike and a foul a foul."

Thomas' pugnacious public image doesn't jibe with his personality, others say. He is the warmest and most accessible Supreme Court justice, they say, a man with a booming laugh who mentors young people.

In a 1998 address to a group of predominantly African-American lawyers, Thomas showed a more vulnerable side.

"It pains me deeply -- more deeply than any of you can imagine -- to be perceived by so many members of my race as doing them harm," he told the National Bar Association, the nation's largest group of lawyers, during a meeting in Memphis, Tennessee.

"All the sacrifice, all the long hours of preparation were to help, not to hurt," he said. "I have come here today not in anger or to anger."

Thomas' speech was greeted with scattered boos and little applause, news reports say.

Thomas' latest decisions may receive the same hostile reaction from his own community. But that won't stop Thomas from issuing his fiery opinions on race, in court and out of it, some say.

"It seems as if he's accepted the fact that he's out there alone and he's writing for the future, not today," says Coyle, author of "The Roberts Court."

The goals of that future aren't that much different from those of the past, Thomas suggests in his memoir. At the end of his book, Thomas wrote that he was visited by Marshall, now considered a civil rights icon, in 1991 shortly after Thomas was confirmed to the court.

Thomas tells him he would have marched with civil rights demonstrators if he had the courage.

"I did in my time what I had to," Thomas says Marshall told him. "You have to do in your time what you have to do."

Whether people agree with Thomas or not, one thing is apparent from the direction of this Supreme Court: Thomas is not so alone anymore.

This is his time.

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